Exhibit (5)(e)
FORM OF
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___ day of _____________ by and between Xxxxxxxx
International Funds, a Delaware Business Trust (the "Trust") and Xxxxxxxx
International Capital Management, LLC, a Delaware limited liability company (the
"Adviser").
1. Duties of Adviser. The Trust hereby appoints the Adviser to act as
investment adviser to the Xxxxxxxx [ ] Fund (the "Series") for the period and on
such terms set forth in this Agreement. The Trust employs the Adviser to manage
the investment and reinvestment of the assets of the Series, to determine in its
discretion the assets to be held uninvested, to provide the Trust with records
concerning the Adviser's activities which the Trust is required to maintain, and
to render regular reports to the Trust's officers and Board of Trustees
concerning the Adviser's discharge of the foregoing responsibilities. The
Adviser shall discharge the foregoing responsibilities subject to the control of
the officers and the Board of Trustees of the Trust, and in compliance with the
objectives, policies and limitations set forth in the Trust's Prospectus and
Statement of Additional Information. The Adviser accepts such employment and
agrees to render the services and to provide, at its own expense, the office
space, furnishings, equipment and the personnel required by it to perform the
services on the terms and for the compensation provided herein.
2. Portfolio Transactions. The Adviser shall provide the Series with a
trading department. The Adviser shall select the brokers or dealers that will
execute the purchases and sales of securities for the Series and is directed to
use its best efforts to ensure that the best available price and most favorable
execution of securities transactions for the Series are obtained. The Series
will bear all expenses associated with its investment activities, including,
without limitation, brokerage commissions and custody expenses. Subject to
policies established by the Board of Trustees of the Trust and communicated to
the Adviser, it is understood that the Adviser will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or in respect of
the Series, or be in breach of any obligation owing to the Trust or in respect
of the Series under this Agreement, or otherwise, solely by reason of its having
caused the Series to pay a member of a securities exchange, a broker or a dealer
a commission for effecting a securities transaction for the Series in excess of
the amount of commission another member of an exchange, broker or dealer would
have charged if the Adviser determines in good faith that the commission paid
was reasonable in relation to the brokerage or research services provided by
such member, broker or dealer, viewed in terms of the particular transaction or
the Adviser's overall responsibilities with respect to the accounts, including
the Series, as to which it exercises investment discretion. The Adviser will
promptly communicate to the officers and directors of the Trust such information
relating to Series transactions as they may reasonably request.
3. Compensation of the Adviser. For the services to be rendered by the
Adviser as provided in Section 1 and 2 of this Agreement, the Series shall pay
to the Adviser within five business days after the end of each calendar month, a
monthly fee of one twelfth of 1.00% of the Series' average daily net assets for
the month. The net asset value shall be calculated in the manner provided in the
Series' prospectus and statement of additional information then in effect. The
Adviser may reduce any portion of the compensation or reimbursement of expenses
due to it pursuant to this Agreement. Any fee withheld pursuant to this
paragraph from the Adviser shall be reimbursed by the Series to the Adviser in
the first, second or third (or any combination thereof) fiscal year next
succeeding the fiscal year of the withholding if the aggregate expenses for the
next succeeding fiscal year or second succeeding fiscal year or third succeeding
fiscal year do not exceed any more restrictive limitation to which the Adviser
has agreed. The Adviser generally may request and receive reimbursement for the
oldest reductions and waivers before payment for fees and expenses for the
current year.
4. In the event of termination of this Agreement, the fee provided in
this Section 3 shall be paid on a pro rate basis, based on the number of days
when this Agreement was in effect.
5. Reports. The Series and the Adviser agree to finish to each other
such information regarding their operations with regard to their affairs as each
may reasonably request.
6. Status of Adviser. The services of the Adviser to the Series are not
to be deemed exclusive, and the Adviser shall be free to render similar services
to others so long as its services to the Series are not impaired thereby.
7. Liability of Adviser. In the absence of willful misfeasance, bad
faith, gross negligence or reckless disregard by the Adviser of its obligations
and duties hereunder, the Adviser shall not be subject to any liability
whatsoever to the Series, or to any shareholder of the Series, for any error of
judgment, mistake of law or any other act or omission in the course of, or
connected with, rendering services hereunder including, without limitation, for
any losses that may be sustained in connection with the purchase, holding,
redemption or sale of any security on behalf of the Series.
8. Duration and Termination. This Agreement shall become effective on
__________________, 1998 provided that first it is approved by the Board of
Trustees of the Trust, including a majority of those trustees who are not
parties to this Agreement or interested persons of any party hereto, in the
manner provided in section 15(c) of the Investment Company Act of 1940, and by
the holders of a majority of the outstanding voting securities of the Series;
and shall continue in effect until ______________, 2000. Thereafter, this
Agreement may continue in effect only if such continuance is approved at least
annually by: (i) the Trust's Board of Trustees or, (ii) by the vote of a
majority of the outstanding voting securities of the Series; and in either event
by a vote of a majority of those trustees of the Trust who are not parties to
this Agreement or interested persons of any such party in the manner provided in
section 15(c) of the Investment Company Act of 1940. This Agreement may be
terminated by the Trust at any time, without the payment of any penalty, by the
Board of Trustees of the Trust at any time, without the payment of any penalty,
by the Board of Trustees of the Trust or by vote of the holders of a majority of
the outstanding voting securities of the Series on 60 days' written notice to
the Adviser. This Agreement may be terminated by the Adviser at any time,
without the payment of any penalty, upon 60 days' written notice to the Trust.
This Agreement will automatically terminate in the event of its assignment. Any
notice under this Agreement shall be given in writing, addressed and delivered
or mailed postpaid, to the other party at the principal office of such party.
As used in this Section 8, the terms "assignment" "interested person",
and "a vote of a majority of the outstanding voting securities"
shall have the respective meanings set forth in Section 2(a)(4),
Section 2(a)(19) and Section 2(a)(42) of the 1940 Act and Rule
18f-2 thereunder.
9........ Name of Adviser. The parties agree that the Adviser has a
proprietary interest in the name "Xxxxxxxx," and the Trust agrees to promptly
take such action as may be necessary to delete from its corporate name and/or
the name of the Series any reference to the name of the Adviser or the name
"Xxxxxxxx," promptly after receipt from the Adviser of a written request
therefore.
10....... Severability. If any provisions of this Agreement shall be
held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
11....... Governing Law. This agreement shall be governed by and
construed and interpreted in accordance with the laws of
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the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of ___ day of ____________________, 1998.
ATTEST:.................... XXXXXXXX INTERNATIONAL FUNDS
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____________, Secretary.... G. Xxxx Xxxxxxxx, President
ATTEST:.................... XXXXXXXX INTERNATIONAL
........................... CAPITAL MANAGEMENT, LLC
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____________, Secretary.... G. Xxxx Xxxxxxxx, President
